Đề mục 8. Kháng Án (Điều 1619-1640)

Without prejudice to cann. 1622 and 1623, whenever a case concerns the good of private individuals, acts which are null with a nullity established by positive law are validated by the judgement itself, if the nullity was known to the party making the plaint and was not raised with the judge before the judgement.

A judgement is null with a nullity which cannot be remedied,1° it was given by a judge who was absolutely non-competent;2° it was given by a person who has no power to judge in the tribunal in which the case was decided;3° the judge was compelled by force or grave fear to deliver judgement;4° the trial took place without the judicial plea mentioned in can. 1501, or was not brought against some party as respondent;5° it was given between parties of whom at least one has no right to stand before the court;6° someone acted in another’s name without a lawful mandate;7° the right of defence was denied to one or other party;8° the controversy has not been even partially decided.

In respect of the nullity mentioned in can. 1620, a plaint of nullity can be made in perpetuity by means of an exception, or within ten years of the date of publication of the judgement by means of an action before the judge who delivered the judgement.

A judgement is null with a nullity which is simply remediable, if:1° contrary to the requirements of can. 1425
§1, it was not given by the lawful number of judges;2° it does not contain the motives or reasons for the decision;3° it lacks the signatures prescribed by the law;4° it does not contain an indication of the year, month, day and place it was given;5° it is founded on a judicial act which is null and whose nullity has not been remedied in accordance with can. 1619;6° it was given against a party who, in accordance with can. 1593
§2, was lawfully absent.

In the cases mentioned in can. 1622, a plaint of nullity can be proposed within three months of notification of the publication of the judgement.

The judge who gave the judgement is to consider the plaint of its nullity. If the party fears that the judge who gave the judgement is biased, and consequently considers him suspect, he or she can demand that another judge take his place in accordance with can. 1450.

Within the time limit established for appeal, a plaint of nullity can be proposed together with the appeal.

§1 A plaint of nullity can be made not only by parties who regard themselves as injured, but also by the promotor of justice and the defender of the bond, whenever they have a right to intervene.
§2 Within the time-limit established in can. 1623, the judge himself can retract or correct an invalid judgement he has given, unless in the meantime an appeal joined to a plaint of nullity has been lodged, or the nullity has been remedied by the expiry of the time-limit mentioned in can. 1623.

Cases concerning a plaint of nullity can be dealt with in accordance with the norms for an oral contentious process.

Without prejudice to the provisions of can. 1629, a party who considers him or herself to be injured by a judgement has a right to appeal from the judgement to a higher judge; in cases in which their presence is required, the promotor of justice and the defender of the bond have likewise the right to appeal.

No appeal is possible against:1° a judgement of the Supreme Pontiff himself, or a judgement of the Apostolic Signatura;2° a judgement which is null, unless the appeal is lodged together with a plaint of nullity, in accordance with can. 1625;3° a judgement which has become an adjudged matter4° a decree of the judge or an interlocutory judgement, which does not have the force of a definitive judgement, unless the appeal is lodged together with an appeal against the definitive judgement;5° a judgement or a decree in a case in which the law requires that the matter be settled with maximum expedition.

§1 The appeal must be lodged with the judge who delivered the judgement, within a peremptory time-limit of fifteen canonical days from notification of the publication of the judgement.
§2 If it is made orally, the notary is to draw up the appeal in writing in the presence of the appellant.

If a question arises about the right of appeal, the appeal tribunal is to determine it with maximum expedition, in accordance with the norms for an oral contentious process.

§1 If there is no indication of the tribunal to which the appeal is directed, it is presumed to be made of the tribunal mentioned in cann. 1438 and 1439.
§2 If the other party has resorted to some other appeal tribunal, the tribunal which is of the higher grade is to determine the case, without prejudice to can. 1415.

The appeal is to be pursued before the appeal judge within one month of its being forwarded, unless the originating judge allows the party a longer time to pursue it.

§1 To pursue the appeal, it is required and is sufficient that the party request the assistance of the higher judge to amend the judgement which is challenged, enclosing a copy of the judgement and indicating the reasons for the appeal.
§2 If the party is unable to obtain a copy of the appealed judgement from the originating tribunal within the canonical time-limit, this timelimit is in the meantime suspended. The problem is to be made known to the appeal judge, who is to oblige the originating judge by precept to fulfil his duty as soon as possible.
§3 In the meantime, the originating judge must forward the acts to the appeal court in accordance with can. 1474.

The appeal is considered to be abandoned if the time-limits for an appeal before either the originating judge or the appeal judge have expired without action being taken.

§1 The appellant can renounce the appeal, with the effects mentioned in can. 1525.
§2 Unless the law provides otherwise, an appeal made by the defender of the bond or the promotor of justice, can be renounced by the defender of the bond or the promotor of justice of the appeal tribunal.

§1 An appeal made by the plaintiff benefits the respondent, and vice versa.
§2 If there are several respondents or plaintiffs, and the judgement is challenged by only one of them, or is made against only one of them, the challenge is considered to be made by all and against all whenever the thing requested is an individual one or the obligation is a joint one.
§3 If one party challenges a judgement in regard to one ground, the other party can appeal incidentally on the other grounds, even if the canonical time-limit for the appeal has expired. This incidental case is to be appealed within a peremptory time-limit of fifteen days from the day of notification of the principal appeal.
§4 Unless the contrary is clear, an appeal is presumed to be against all the grounds of the judgement.

An appeal suspends the execution of the judgement.

§1 Without prejudice to the provision of can. 1683*, a new ground cannot be introduced at the appeal grade, not even by way of the useful accumulation of grounds. So the joinder of the issue can concern itself only with the confirmation or the reform of the first judgement, either in part or in whole. [*Following Mitis Iudex Dominus Iesus the relevant provision is now 1680
§4]
§2 New evidence is admitted only in accordance with can. 1600.

With the appropriate adjustments, the procedure at the appeal grade is to be the same as in first instance. Unless the evidence is to be supplemented, however, once the issue has been joined in accordance with can. 1513
§1 and can. 1639
§1, the judges are to proceed immediately to the discussion of the case and the judgement.